Report of an Independent International Fact-finding Mission to Turkey examining the Treatment of Lawyers Deprived of their Liberty and Observing Trial Proceedings 6-10 November 2023

Between 6 and 10 November 2023, an international delegation representing 27 law societies, bar associations, human rights groups and legal groups undertook a fact-finding mission to Turkey to interview eight lawyers who have been arrested and detained in circumstances that raise a range of human rights concerns.
The delegation also observed two court hearings, the first concerning the criminal proceedings against twelve lawyers who are members of the Association of Lawyers for Freedom (ÖHD) and the second a review hearing for the pre-trial detention of Ms Gülhan Kaya, a prominent
human rights lawyer.
The aim of the mission was to gather first-hand information on the circumstances of the arrest, imprisonment and trial of the lawyers, and their conditions and treatment in detention, and to assess these against Turkey’s obligations under international human rights law and customary law. The delegation also paid their respects at the grave of Ebru Timtik—a lawyer who died in detention in 2020 during a hunger strike in pursuit of the right to a fair trial.
The mission was undertaken due to concerns that lawyers in Turkey have faced interference when practicing their profession and have been identified with their clients and their client’s causes. This has resulted in many lawyers being subjected to intimidation, harassment,
arbitrary arrest and detention, unfair trials, torture and other ill-treatment. This has taken place in the context of a crackdown on human rights by the government in the aftermath of a failed
military coup attempt in July 2016. Following this event, the government declared a state of emergency, lasting two years, during which it suspended, detained, or fired nearly one-third of
the judiciary, who were accused of affiliation with the Gülen movement alleged to have been behind the attempted coup.
The Government has been using overly broad anti-terror laws to restrict a range of fundamental human rights including the rights to freedom of expression, peaceful assembly and association. Lawyers and human rights defenders have found themselves targeted under
these laws, including being charged with terrorism offences when taking on human rights cases and conducting their professional duties and advocacy.
The lawyers interviewed during the mission are part of a larger group of lawyers who have been prosecuted on various charges including “being a member of a terrorist organisation” and making “terrorist propaganda”. These lawyers are members of Ҫağdaş Hukukçular Derneği (ҪHD) – the Progressive Lawyers Association, whose legal services involve human
rights cases, including the representation of clients who are critical of the government of Turkey. ҪHD was dissolved by governmental decree on 22 November 2016, however the association members remained active. In October 2019 it was reopened, but a case was initiated to close it once more. The ҪHD was finally re-established in 2022. Most have also worked at the Halkın Hukuk Bürosu (HHB) – the Peoples` Law Office. The lawyers have been prosecuted in mass trials commonly known as the ÇHD I and ÇHD II trials.
The ÇHD I trial started in 2013, when 22 lawyers, who were ÇHD members, were arrested and charged with offences under anti-terrorism legislation. In 2017, a second criminal case was filed, the ÇHD II trial, against 20 lawyers. Eight of the lawyers in the second trial, namely
Oya Aslan, Naciye Demir, Günay Dağ, Şükriye Erden, Barkın Timtik, Selcuk Kozağaclı, Ebru Timtik, and Özgur Yılmaz, had also faced prosecution in the first trial. Both cases are based on the same evidence and charges, raising concerns that these trials violate the ne bis in idem
principle – the right not to be tried repeatedly on the basis of the same offence, act, or facts.

Read the full statement: Fact-finding mission

Le monde entier regarde

Une délégation de plus de 60 observateurs internationaux condamne le jugement de la Cour dans le cadre des poursuites pénales engagées depuis une décennie contre 21 avocats de ÇHD (Progressive Lawyers’ Association) et HHB (People’s Law Office) : La délégation prévient que “le monde entier regarde”.

 

Cette semaine, nous – plus de 60 avocats de 9 pays représentant plus de 30 barreaux, ONG et associations professionnelles d’avocats – avons observé les dernières audiences du procès de masse qui a débuté en 2013 contre 22 avocats du ÇHD (Association des avocats progressistes) et du HHB (Bureau du droit du peuple). Il n’en reste désormais plus que 21, Ebru Timtik étant décédé – en grève de la faim pour un procès équitable – au cours de ces procédures.

Aujourd’hui, ces avocats ont été condamnés pour appartenance à une organisation terroriste et participation à la propagande terroriste, et de longues peines de prison ont été prononcées.

Ces condamnations et ces peines constituent une violation intégrale du droit à un procès équitable, des Principes de base des Nations unies relatifs au rôle du barreau et de l’État de droit.

Les seuls faits matériels portés à la connaissance de la Cour étaient strictement liés aux activités professionnelles des accusés en tant qu’avocats dans le domaine des droits de l’homme : participation à une conférence de presse, présence dans ou à proximité d’une manifestation, conseil à des clients sur leur droit de garder le silence, défense de suspects accusés de terrorisme, etc. Au cours de l’enquête, certains des avocats accusés ont été soumis à des écoutes téléphoniques pendant plus d’un an, dans une violation apparente du caractère absolu du secret professionnel des avocats.

Les Principes de base de l’ONU garantissent spécifiquement le droit des avocats à participer au débat public et à s’associer entre eux et stipulent en outre que les avocats ne doivent jamais être identifiés à leurs clients ou aux causes de leurs clients, ni faire l’objet de poursuites pour une action conforme à leurs devoirs professionnels.

De plus, nos collègues ont été privés de leur droit à un procès équitable. Leur demande de temps suffisant pour présenter leur défense a été rejetée par la Cour, qui n’a accordé que cinq petits jours d’audience pour 21 défendeurs, et a rejeté la demande des défendeurs de reporter l’audience afin de permettre un examen adéquat des preuves, en particulier des documents électroniques dont l’authenticité est sérieusement mise en doute.

Le procès s’est tenu dans une salle d’audience de la prison de Silivri, avec une forte présence policière. Les accusés ont été séparés de leurs avocats par deux rangées de policiers, ce qui a empêché les accusés et leurs avocats de communiquer en toute confidentialité.

Les droits des accusés ont également été violés par le fait que la procédure n’a pas été menée à son terme dans un délai raisonnable, le procès étant en cours depuis dix ans sans qu’il y ait de justification appropriée à la prolongation de la procédure.

De plus, pour plusieurs des accusés, ce procès repose sur des faits et des preuves qui ont déjà été utilisés dans le procès de 2017 contre sept des mêmes accusés, en violation du principe selon lequel personne ne doit être jugé deux fois pour la même infraction.

Enfin, nous sommes profondément préoccupés par l’indépendance du pouvoir judiciaire et l’état de droit. En attaquant ces avocats pour leur défense des droits de l’homme, ce sont les droits de l’homme, la démocratie et l’État de droit qui sont assiégés.

Nous sommes toujours fiers d’être solidaires de nos courageux collègues, et nous demandons une fois de plus leur libération immédiate.

Le monde entier regarde

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Signatures:

  • Barreau d’Amsterdam
  • Asociación Libre de Abogadas y Abogados, Madrid (ALA)
  • AVOCATS.BE – Ordre des barreaux francophones et germanophones de Belgique
  • Barreau de Berlin
  • Barreau de Bologne
  • Barreau de Bordeaux
  • Barreau de Bruxelles
  • Conférence Régionale des Bâtonniers de l Ouest
  • Criminal Committee of the International Association of Lawyers
  • Défense sans frontières – Avocats solidaires, France (DSF-AS)
  • Dutch League for Human Rights
  • Barreau d’Épinal
  • European Association of Lawyers for Democracy and World Human Rights, ELDH
  • European Democratic Lawyer – Avocats européens démocrates (AED)
  • Fair Trial Watch
  • Foundation Day of the Endangered Lawyer
  • européens  Hauts-de-Seine
  • Institut des droits de l’homme de Montpellier
  • La Conférence des Bâtonniers de France
  • Lawyers for Lawyers
  • Barreau de Liege-Huy
  • Barreau de Lyon
  • Barreau de Marseille
  • Barreau de Montpellier Bar
  • National Association of Democratic Jurists, Italy (GD)
  • National Lawyers Guild, US
  • Republikanischer Anwältinnen – und Anwälteverein e.V. (RAV)
  • Syndicat des Avocats de France
  • Syndicat des Avocats Pour la Démocratie, Belgium
  • The Association for the Support of Fundamental Rights Athens, Greece
  • The Center of Research and Elaboration on Democracy/ Legal International Intervention Group
  • Le Barreau fédéral allemande
  • L’Observatoire international des avocats en danger (OIAD), composé de 47 barreaux d’Espagne, de France, d’Italie, d’Allemagne, de Suisse, de Belgique, de Turquie, du Cameroun et de la République démocratique du Congo.
  • Barreau de Toulouse
  • UIA-IROL (l’Institut pour l’État de droit de l’Association internationale des juristes)

 

Une délégation d’avocates et avocats d’Europe et des États-Unis observe le procès CHD à Silivri Le procès qui dure déjà depuis 10 ans

En 2013, il y a dix ans, un procès de masse a débuté contre 22 avocates et avocats, tous membres de l’organisation d’avocats Progressive Lawyers’ Association (ÇHD, Turquie) et du People’s Law Office (HHB). Depuis, jusqu’à trois audiences ont eu lieu chaque année – d’abord devant la “Cour d’assises spéciale” (la Haute Cour pénale), puis, en 2014, après un changement dans la loi de procédure pénale de la Turquie, devant la Haute Cour penale ordinaire.

Tous les avocats en question ont été condamnés ou font l’objet de poursuites pour leurs activités professionnelles. En violation des Principes de base des Nations unies relatifs au rôle du barreau, ils sont, d’une part, identifiés aux causes de leurs clients et, d’autre part, limités dans leur liberté d’expression, qui inclut le droit de prendre part à des débats publics sur les droits de l’homme.

Plusieurs des accusés, dont le président du ÇHD, Selçuk KOZAGAÇLI, ont déjà été soumis à des années de détention provisoire. L’une des accusées de ce procès, Ebru Timtik, est mort pendant sa grève de la faim pour obtenir des procès équitables devant les tribunaux turcs.

Des avocats d’Europe et d’autres continents ont observé toutes les audiences. Cette semaine, les observateurs internationaux comprennent plus de 60 avocats de huit pays européens et des États-Unis : Autriche, Belgique, France, Allemagne, Grèce, Italie, Pays-Bas, Espagne/Catalogne et États-Unis. Les avocats représentent divers barreaux locaux, des confédérations européennes et internationales de barreaux et d’autres organisations d’avocats.

L’article 10 de la Déclaration universelle des droits de l’homme et l’article 14 du Pacte international relatif aux droits civils et politiques imposent à la Turquie de garantir à tous les prévenus un procès équitable et public devant un tribunal compétent, indépendant et impartial.

Auparavant, en 2021, à l’occasion de la Journée internationale du procès équitable, dédiée la Turquie cette année-là, le jury est arrivé à la conclusion que ces normes internationales pour un procès équitable sont fréquemment violées en Turquie.

Cette semaine, les observateurs internationaux suivent de très près le procès de ÇHD afin de déterminer si le tribunal respectera les normes internationales en matière de procès équitable et si les violations antérieures de ces principes au cours de ce procès seront corrigées par le tribunal.

Les procès contre les avocats de ÇHD s’inscrivent dans un schéma plus large d’attaque contre les avocats en Turquie et d’identification de ceux-ci avec leurs clients. Les avocats sont injustement criminalisés et poursuivis pour avoir rempli leurs obligations professionnelles. Cette situation est intolérable et constitue une violation manifeste du droit international. De plus, les observateurs internationaux ont conclu que les normes internationales du procès équitable n’ont pas été respectées lors des audiences qu’ils ont observées précédemment.

Nous demandons donc la libération immédiate de tous les avocats incarcérés en raison de leur travail sur des affaires politiques. Ce n’est pas un crime d’être un avocat. Nous continuerons d’insister pour mettre fin à la criminalisation du simple exercice de la profession d’avocat et pour faire respecter les principes fondamentaux de l’État de droit, y compris le droit à un procès équitable pour tous, en Turquie et ailleurs dans le monde.

Signataires:

  • European Association of Lawyers for Democracy and World Human Rights, ELDH
  • La Conférence des bâtonniers
  • L’association Défense Sans frontière – Avocats Solidaires (Defense Without Borders – Solidarity Lawyers, France (DSF-AS)
  • Giuristi Democratici – Association nationale des juristes démocrates, Italie
  • UIA-IROL (the Institute for the Rule of Law of the International Association of Lawyers)
  • Lawyers for Lawyers, Pays Bas
  • Le Barreau fédéral allemand
  • Union of Italian Penal Chambers (UCPI)
  • Republikanischer Anwältinnen – und Anwälteverein e.V. (RAV)
  • L’Observatoire International des Avocats en Danger (OIAD)
  • The Center of Research and Elaboration on Democracy/ Legal International Intervention Group
  • L’association catalane pour la Défense de droits de l’homme
  • La commission de défense de l’association du Barreau de Barcelona
  • Le Barreau de New York City
  • The Foundation of the Day of the Endangered Lawyer
  • The Dutch League for Human Rights
  • Avocats Européens Démocrates / European Democratic Lawyers
  • The Association for the Support of Fundamental Rights Athens, Greece
  • L’association du Barreau de Marseille
  • Fair Trial Watch
  • L’association du Barreau de Berlin
  • L’association du Barreau de Bordeaux
  • Conférence Régionale des Bâtonniers de l Ouest
  • L’association du Barreau de Epinal
  • The International Association of Democratic Lawyers (IADL)
  • National Union of People’s Lawyers, the Philippines (NULP)
  • Asociación Americana de Juristas
  • Confederation of Lawyers of Asia and the Pacific (COLAP)
  • L’association du Barreau de Bruxelles
  • AVOCATS.BE – l’Ordre des associations des barreaus germanophones et francophones de Belgique
  • Syndicat des Avocats Pour la Démocratie
  • OBFG Association de l’Ordre des avocats germanophones et francophones de Belgique
  • L’association du Barreau de Liège-Huy
  • L’association du Barreau de Montpellier
  • L’association du Barreau de Lyon
  • L’association du Barreau de Amsterdam
  • L’association du Barreau de Hauts-de-Seine
  • L’association du Barreau de Grenoble
  • Institut des Droits de l’homme de Grenoble

Lawyers delegation from Europe and the USA observe the CHD trial in Silivri – The trial which already has lasted for 10 years

In 2013, ten years ago, a mass trial started against 22 lawyers, all of them members of the lawyers organisation Progressive Lawyers’ Association (ÇHD, Turkey) and of the Peoples Law Office (HHB). Since then up to three hearings have taken place each year – first before the “Special Assize Court” (the Heavy Penal Court), then, in 2014, after a change in penal procedural law of Turkey, before the ordinary Heavy Penal Court.

All lawyers in question were convicted or face charges for their professional activities. In violation of the UN Basic Principles on the Role of Lawyers, they are, firstly, identified with their clients’ causes, and, secondly, limited in their freedom of expression, which includes the right to take part in public discussions about human rights.

Several of the defendants, among them the ÇHD president Selçuk KOZAGAÇLI, have already been subject to years of pretrial detention. One of the defendants in this trial, Ebru Timtik, died during her hunger strike seeking fair trials in the courts of Turkey.

Lawyers from Europe and other continents have observed all hearings. This week the International Observers include more than 60 lawyers from 8 European countries and the USA: Austria, Belgium, France, Germany, Greece, Italy, The Netherlands, Spain/Catalonia, and the US. The lawyers represent various local Bar Associations, European and International Bar confederations, and other lawyers’ organisations.

Article 10 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights require Turkey to provide all defendants with a fair and public trial by a competent, independent, and impartial court.

Previously, in 2021, on the occasion of the International Fair Trial Day, which focused on Turkey that year, the jury came to the conclusion that these international standards for a fair trial are frequently violated in Turkey.

This week, the International Observers are monitoring the ÇHD trial very closely to determine whether the court will adhere to international fair trial standards and whether prior violations of these principles in the course of this trial will be remedied by the court.

The trials against the lawyers of ÇHD are part of a larger pattern of attacking lawyers in Turkey and identifying them with their clients. Lawyers are unjustly criminalized and prosecuted for fulfilling their professional duties. This is intolerable and in clear violation of international law. Further, the International Observers have concluded that international fair trial standards have not been respected in the hearings they have previously observed.

Therefore we demand the immediate release of all lawyers incarcerated based on their work on political cases. It is not a crime to be a lawyer. We will continue to insist on ending the criminalization of merely exercising the profession of lawyers and on upholding the fundamental principles of the rule of law, including the right to a fair trial for all people in Turkey and elsewhere throughout the world.

Signatories:

  • European Association of Lawyers for Democracy and World Human Rights, ELDH
  • La Conférence des bâtonniers
  • L’association Défense Sans frontière – Avocats Solidaires (Defense Without Borders – Solidarity Lawyers, France (DSF-AS)
  • Giuristi Democratici – National Association of Democratic Jurists, Italy
  • UIA-IROL (the Institute for the Rule of Law of the International Association of Lawyers)
  • Lawyers for Lawyers, the Netherlands
  • The German Federal Bar
  • Union of Italian Penal Chambers (UCPI)
  • Republikanischer Anwältinnen – und Anwälteverein e.V. (RAV)
  • The International Observatory for Lawyers in Danger (OIAD)
  • The Center of Research and Elaboration on Democracy/ Legal International Intervention Group
  • The Catalan Association for the Defense of Human Rights
  • The Barcelona Bar Association’s Defence Commission
  • The New York City Bar Association
  • The Foundation of the Day of the Endangered Lawyer
  • The Dutch League for Human Rights
  • Avocats Européens Démocrates / European Democratic Lawyer
  • The Association for the Support of Fundamental Rights Athens, Greece
  • Marseille Bar Association
  • Fair Trial Watch
  • Berlin Bar Association
  • Bordeaux Bar Association
  • Conférence Régionale des Bâtonniers de l Ouest
  • Epinal Bar Association
  • The International Association of Democratic Lawyers (IADL)
  • National Union of People’s Lawyers, the Philippines (NULP)
  • Asociación Americana de Juristas
  • Confederation of Lawyers of Asia and the Pacific (COLAP)
  • Brussels Bar Associaton
  • AVOCATS.BE – Order of French- and German-speaking bar associations of Belgium
  • Syndicat des Avocats Pour la Démocratie
  • OBFG German and French speaking Bar Association of Belgium
  • Liège-Huy Bar Associaton
  • Bar Association
  • Montpellier Bar Association
  • Lyon Bar Association
  • Amsterdam Bar Association
  • Hauts-de-Seine Bar Association
  • Grenoble Bar Association
  • Institut des Droits de l’homme de Grenoble

BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

WRITTEN SUBMISSIONS OF:

European Association of Lawyers for Democracy and World Human Rights (ELDH), European Democratic Lawyers (EDL), Association of Lawyers for Freedom (ÖHD), and Progressive Lawyers’ Association (ÇHD)

ON THE APPLICATIONS:

  1. No. 1712/21         K.K. v. Greece
  2. No. 2871/21         I.M. v. Greece,
  3. No. 3104/21         S.K. v. Greece,
  4. No. 3111/21         S.A. v. Greece,
  5. No. 3118/21         L.M. v. Greece,
  6. No. 4034/21         A.D. v. Greece,
  7. No. 4159/21         T.M. v. Greece,
  8. No. 4177/21         H.T. et al. v. Greece   
  9. No. 6923/21         S.G. v. Greece
  10. No. 10258/21       F.C. v. Greece
  11. No. 10692/21       O.M. v. Greece
  12. No. 12807/21       M.A. v. Greece
  13. No. 12926/21       M.E. v. Greece
  14. No. 13134/21       M.S. v. Greece
  15. No. 15067/21       G.R.J. v. Greece
  16. No. 15783/21       A.E. v. Greece
  17. No. 16802/21       S.R. v. Greece
  18. No. 16807/21       A.R. v. Greece
  19. No. 16811/21       M.H. v. Greece
  20. No. 16813/21       M.M. v. Greece
  21. No. 16815/21       M.H. v. Greece
  22. No. 16817/21       A.M. v. Greece
  23. No. 16818/21       A.A. v. Greece
  24. No. 16820/21       H.S. v. Greece
  25. No. 16822/21       S.R. v. Greece
  26. No. 16824/21       U.E. v. Greece
  27. No. 16825/21       W.A. v. Greece
  28. No. 16828/21       W.A. v. Greece
  29. No. 16831/21       S.H. v. Greece
  30. No. 22146/21 S.A.A. et al. v. Greece
  31. No. 24982/21       A.A.J. and H.J. v. Greece
  32. No. 42429/21  M.A. v. Greece

I. INTRODUCTION

  1. The following submissions are made by the European Association of Lawyers for Democracy and World Human Rights (ELDH), the European Democratic Lawyers (EDL), the Association of Lawyers for Freedom (ÖHD), and the Progressive Lawyers’ Association (ÇHD) (the “Interveners”) pursuant to the leave granted by of the European Court of Human Rights (the “Court” or the “ECtHR”) on 4 July 2022, in accordance with Rule 44(3) of the Rules of the Court. The 32 above mentioned applications concern the alleged refoulement of the Applicants from Greek territory (land and sea) to Turkey, without prior procedure (“pushbacks”).
  2. In addition to the aspects listed in the request for leave to intervene dated 23 February 2022, after taking the annexes into consideration, and in order to assist the Court effectively, the interveners will also provide the Court with written comments on the risks faced by citizens of Turkey who were pushed back from Greece to Turkey.
  3. Although the Respondent State in the aforementioned applications is Greece, the conditions a person will face upon being pushed back to Turkey are relevant in the present cases due to the expelling state’s obligation to take the treatment into account a person will be subjected to in the receiving state.[1]

II. THIRD COUNTRY NATIONALS

  • First and foremost, the Interveners want to highlight the fact that pushbacks are illegal actions carried out by state officials to prevent asylum seekers from getting access to the domestic asylum procedure. While a pushback is not based on a formal decision, the Respondent State is nevertheless bound to its legal obligations under domestic and international law. The Respondent State is bound to the principle of non-refoulement as soon as asylum seekers enter Greek territory, whether on land or at sea.[2]
  • If substantial grounds have been shown for believing that the removal or return to a third country would expose an asylum seeker[3] to treatment contrary to Article 3 – directly in that third country or indirectly, for example, through chain-refoulement – the Court has confirmed the responsibility of the Contracting State not to deport.[4] These duties also include the duty to consider the overall reception conditions for asylum seekers in the receiving state, and the duty to consider the respective person’s situation.[5]
  • Article 86(1) of the Greek Law 4636/2019 (“International Protection Act [IPA]”) defines the criteria for the application of the “Safe Third Country” (“STC”) concept. Even though the criteria are in general consistent with Article 38 EU Directive 2013/32 (“Asylum Procedure Directive”), a serious divergence arises. With IPA, Article 86(1)(f) an additional set of criteria was introduced concerning the relation of an asylum seeker with a “STC” by which a mere transit state, in combination with specific circumstances, can be deemed as “safe”.
  • While the Court so far has never questioned the “STC” concept as such, nor has it commented on whether a given third country was safe or not, the Court is sometimes – as given in the aforementioned applications – “obliged to scrutinise the use of the safe third-country concept against the benchmark of Article 3 and the prohibition of non-refoulement”.[6] In this context, the Court has stated in its case law that the deporting State “has a general procedural obligation to carry out a fair and thorough examination of the conditions in that third country”,[7] including “the accessibility and reliability of its asylum system”.[8] While it rests with the asylum seekers to substantiate their individual circumstances, the Contracting State’s authorities, however, are obliged to conduct an assessment “of the accessibility and functioning of the receiving country’s asylum system and the safeguards it affords in practice”[9] on their own motion. This obligation applies all the more if a general risk of a breach – for example, of Article 3 – in the receiving state is well known.[10]
  • Despite the fact that “Turkey has persistently raised concerns about alleged migrant arrival prevention measures (so-called ‘pushbacks’) enforced by the Greek authorities in the Aegean Sea”,[11] the survivors of these illegal actions from Greek state organs do not receive any protection in Turkey where they are deprived of their fundamental human rights and face a real and genuine fear of refoulement. As will be set out below, Turkey – with regards to its asylum system and its reception conditions – fails to meet the recognized requirements leading to a systematic violation of the rights of asylum seekers as set out in the Convention.

A. Insufficient Access to Protection in Turkey

  • According to the European Commission, the asylum legislation in Turkey is only partially aligned with the EU acquis. “The Law on Foreigners and International Protection maintains the reservation (geographical limitation) expressed in the New York Protocol of the 1951 Geneva Convention, according to which the vast majority of persons seeking international protection in Turkey cannot apply for fully-fledged refugee status but for ‘conditional refugee’ status and subsidiary protection only”.[12] In other words, anyone not originally from a European country is excluded from full refugee recognition. In effect, this legislation bars any citizen of a West Asian or African country from the protection as a refugee under the Geneva Convention.[13]
  • However, based on Article 38(1)(c) and (e) of the Asylum Procedures Directive, Member States of the European Union may apply the “STC” concept only if the third country concerned respects the principle of non-refoulement in accordance with the Geneva Convention, and if the possibility exists to request refugee status in that third country and, if found to be a refugee, to receive protection there in accordance with the Geneva Convention. Already under these requirements alone, Turkey fails to meet the conditions necessary to be considered a “STC”.
  • Despite the fact that there is no protection under the Geneva Convention for non-Europeans available in Turkey, Turkey particularly offers to asylum seekers the following permits based on the Law on Foreigners and International Protection No. 6458 (LFIP)[14]: conditional refugee status (Şartlı Mülteci Statüsü), subsidiary protection status (İkincil Koruma Statüsü) and temporary protection status for Syrian nationals (Geçici Koruma Statüsü). However, based on the experience of the Interveners’ members working in the field, one of the main obstacles for asylum seekers in Turkey to obtain a residence permit is insufficient access to the migration system.[15]
  • Temporary protection for Syrian nationals: Since October 2014[16] Syrians can officially obtain Temporary Protection Status (TPS)[17] in Turkey under the Temporary Protection Regulation (TPR).[18] TPS is designed for situations of high numbers of refugees entering Turkey, and therefore, “is not defined as a form of international protection but a complementary measure used in situations where individual international protection eligibility processing is deemed impractical”.[19] Although the flow of people from Syria seeking refuge has not ended yet, in practice, it has become extremely difficult to obtain TPS in Turkey due to the fact that cities and neighbourhoods are closing their means of registration (see § 18).[20] According to the European Commission, “NGOs reported considerable challenges with access to registration in the first place, where individuals wishing to lodge an application in PDMMs[21] are referred to other PDMMs, without a formal documentation and referral system. Such de-facto barriers to registration hinder access to all other essential services and put asylum seekers in an irregular situation if apprehended. Effective access to international protection at borders, airports and removal centres remain limited as reported by NGOs and lawyers”.[22]
  • While TPS entitles a person to get health care and education, to apply for a work permit six months after the application for TPS, and to seek social assistance, TPS is tied to the place of registration. If a person moves to another province – e.g. to Istanbul in order to find work – then this person loses all rights attached to this status. Following TPR, Article 33(2)(a), a person under temporary protection is – if not exceptionally permitted otherwise – obligated to stay in the registration province and is not allowed to move to another province. An official transfer is close to impossible.[23] If a person fails to stay in the province of registration and is apprehended elsewhere, this person may face detention in order to be transferred back to the assigned province,[24] but there is also a risk of deportation due to violation of the TPR.[25] Furthermore, if a person fails to stay in the province of residence, they also lose all access to social rights, i.e. education and health care in their new place of residence.[26]
  • Most importantly in the context of pushbacks – based on TPR, Article 12(1) – TPS shall cease where a person leaves Turkey voluntarily, e.g. to try to reach Greece. In other words: If a TPS holder is pushed back from Greece to Turkey, this person’s temporary protection status and ID Card (“kimlik”), if even possessed, will be terminated. In addition, in practice there is no possibility to reobtain a new “kimlik”.[27] Taken the above mentioned together, the protection offered by TPS does not equal the protection provided by the Geneva Convention.
  • International Protection for non-Syrian and non-European citizens: A person who is not eligible for TPS can submit an application for international protection. Conditional refugee status is granted to a non-European citizen[28] who matches the criteria to be recognized as a refugee as set out in the Geneva Convention. However, people with conditional refugee status can not access the social rights guaranteed in the Geneva Convention. Therefore, the protection offered, again, does not equal the protection according to the Geneva Convention. Subsidiary protection, in theory, is provided to people who do not meet the criteria of the refugee definition, but would face, for example, degrading treatment upon return or would be deported to a situation of general violence.[29]
  • Analogous to TPS for Syrian nationals, citizens from other non-European countries first of all need to approach the Provincial Presidency of Migration Management (PPMM) in order to lodge an application for international protection.[30] If an application for international protection is registered, the applicant receives a “kimlik” stating that the person is an international protection applicant, which gives the holder of it the right to access education, health care (temporarily for a year), and, after six months, the right to apply for a work permit. In addition, the PPMM decides the “satellite city”[31] for the applicant and sets a date for an interview. Based on the LFIP, Article 77, international protection applicants are, for example, required to personally prove their presence in the assigned city by signature. If an applicant fails to fulfil this obligation multiple times, their application for international protection will be considered withdrawn.[32] However, the main obstacle, again, is not a theoretical non-availability of a protection status as such, but the practical non-accessibility to registration (see § 18).
  • In addition, the procedure for international protection can take up to several years,[33] and in effect, mostly ends with a negative decision, respectively with a deportation order. Asylum lawyers in Turkey have reported to the Interveners that they know of no examples of clients who, in the end, received conditional refugee status or subsidiary protection.[34] In parallel, a migration rights NGO stated to the Interveners that there are approximately 500,000 Afghans[35] in Turkey, of which 2,700 have received a “humanitarian permit” in 2019, after around five NGOs had lobbied on their behalf. Consistent with the lawyers’ reports cited before, the NGO staff is otherwise unaware of any positive decisions in international protection cases of non-Syrians. In practice, this leads to a situation where most citizens from West Asian or African countries in Turkey do not apply for international protection because they are afraid of deportation.[36] In any case, no protection equivalent to the protection under the Geneva Convention is offered to non-European third country nationals.
  • The Interveners conclude that Turkey offers insufficient protection for asylum seekers. First, the residence permits available do not equal the protection provided by the Geneva Convention. Second, the main obstacle in obtaining actual protection in Turkey is non-accessibility: It has become increasingly challenging for third country nationals to register for a “kimlik” in Turkey. In 2018, the PDMM (now “PPMM”),[37] de facto stopped registering newly arriving Syrians, with the exception of vulnerable cases, in large provinces – such as Istanbul – and provinces with a relatively high refugee population – such as Hatay and Mardin. Since then, there has been an increase in the number of cities ‘closed’ to new applications. As of early 2020, the following cities were closed to all except vulnerable cases: Istanbul, Edirne, Tekirdag, Kirklareli, Kocaeli, Canakkale, Bursa, Balikesir, Izmir, Aydin, Mugla, Antalya, Hatay and Yalova.[38] This situation has remained unchanged, as an estimated 16 provinces were closed to international protection applications in 2021[39] – as to the Intervener’s knowledge, the situation remains unchanged up until today. Due to the prohibition of travelling within Turkey for unregistered third country nationals,[40] individuals affected are, in addition, unable to travel to a place where it might be possible to register.[41] Finally, in the context of the aforementioned applications, it is of most relevance, that – based on FLIP, Article 54(1)(h), and TPR, Article 12(1)(a) and (c) – a “kimlik”, if possessed, is terminated because a person has left Turkey voluntarily, namely to try to reach Greece – and will not be able to re-obtain it. For all these reasons, the Respondent State cannot declare Turkey as generally “safe” for people who have left Turkey voluntarily, seeking international protection in Greece.

B. Systematic Arrests upon Return & Insufficient Conditions of Detention

  1. According to the European Commission, “Turkey needs to further align its practice with European standards in removal centres, in particular with regard to protection of human rights, including access to legal counselling and interpreters and protection of vulnerable groups, in particular children staying with their families”.[42]
  2. Drawing from the experience of the Interveners’ members working in the field, it has been observed that people seeking international protection who were pushed back from Greece to Turkey usually face detention in Turkey.[43] However, the duration varies between a few days and several months. Based on LFIP, Article 57(2), detention for the purpose of removal (“removal detention”) may be ordered to those who, among other reasons, have breached the rules of exit from Turkey. Even during a procedure for international protection, a person may be detained – or kept in detention if removal detention was previously ordered – under LFIP, Article 68. In general, non-European migrants are routinely subject to arbitrary detention in Turkey without legal basis. Namely, persons who are apprehended outside their designated province (see §§ 13 and 16) are at risk of being detained.[44] Based on LFIP, Article 57(3), the maximum duration of the removal detention is six months, yet it may be extended for a maximum of six more months.[45] However, there were cases reported to the Interveners, wherein detainees were released after the maximum duration had been exceeded but were arrested again afterwards.[46]
  3. Furthermore, the Interveners’ members, on several occasions, have received reports of substandard detention conditions in Turkey[47] for pushback survivors, which have even amounted to inhuman and degrading treatment. Although improvements have been made compared to conditions around 2015,[48] inhuman and degrading conditions still persist today, in particular overcrowding,[49] short periods of daily access to the outdoors,[50] lack of privacy due to detention in mass cells, insufficient food supply with, at times, only two meals a day, insufficient access to clean drinking water, and insufficient medical care.[51]
  4. In addition, accessing legal counsel or representation for people in detention is particularly difficult, even though a Legal Aid System has been implemented step by step in different cities, after the Istanbul Bar Association started these activities in 2014. First, the PPMM is not obliged to inform any legal representative about asylum seekers detained. In addition, detainees usually cannot contact a lawyer, a legal NGO, or the regional bar association from inside the detention centre. Therefore, they have to rely on family, friends, or UNHCR to initiate the contact. Second, the contact between asylum seekers in detention and their legal representation is complicated for practical reasons: While the file has to be consulted at the PPMM, the asylum seeker is held in a remote detention centre where a lawyer has to go and visit their clients. However, before the file can be accessed, a lawyer needs to get a notarized Power of Attorney (POA). Therefore, for one, an employee of a notary needs to accompany a lawyer to a detention centre to get the POA certified. This notarization comes with additional fees. For two, in order for a notary to certify a signature, the asylum seeker in question is required to have a valid “kimlik” or a passport. As survivors of pushbacks get their “kimlik” cancelled and often are deprived of all their belongings during a pushback, in these cases, it is close to impossible to sign a notarized POA. While courts in Turkey have started to accept more informal POAs, the PPMM insists on the certification through a notary. In effect, a lawyer can file an appeal against a deportation order with an informal POA, but will not be granted access to the PPMM file of the client. Third, translation inside detention centres is only allowed through formal interpreters. Therefore, a lawyer cannot be accompanied by friends or family members to facilitate communication with an existing or prospective client. Phone translation is also not possible. Certified interpreters, however, request a fee for their service, for which the detainee or a support network outside detention have to provide. Finally, despite “the increase in the number of lawyers handling cases in removal centres (from 4,187 in 2019 to 7,168 in 2020), access to legal counselling remained low, considering hundreds of thousands of migrants apprehended and placed in removal centres”.[52] Moreover, the Interveners’ members are aware of the systematic and unlawful practice of pressuring detainees to sign forms with which they agree to their “voluntary return” (see §§ 24-26). Apart from this, there have been further reports of ill-treatment, including torture, against detainees by staff. For example, in June 2018, in Antalya, a Syrian national was tortured by officers, transferred to Gaziantep, and continued to suffer physical violence throughout the transfer.[53] Upon an investigation of a suicide case in Gaziantep Oğuzeli Removal Centre in 2019, Gaziantep Governorate’s Commission for Investigation and Evaluation of Human Rights Violations stated that there have been several suicide attempts in the removal centre.[54] Furthermore, on 23 June 2021, a Syrian national – based on a statement of the responsible Governor – set himself on fire and died at Izmir Harmandalı Removal Centre.[55]

C. Insufficient Protection from Refoulement in Turkey

  • In practice, non-European migrants are routinely removed from Turkey or pressured to sign the consent form for a “voluntary return”. Of most relevance for survivors of pushbacks is the regulation under LFIP, Article 54(1)(h), which states that any person who has left Turkey irregularly shall be subject to deportation. Therefore, refugees who have fled Turkey and experienced pushback operations are potentially at risk of deportation upon return because of leaving Turkey irregularly.[56]
  • In recent years, and particularly as of July and August 2019, after the regional elections in Turkey, the scale of illegal expulsions from Turkey to Syria – which constitute refoulement – have increased dramatically.[57] In this regard, it can be observed that Syrian nationals are increasingly pushed, respectively forced to sign declarations for “voluntary return”[58] – a practice that recently has been acknowledged also by the ECtHR.[59] In Akkad v. Turkey,the Court had to decide on the case of a young Syrian national, who was initially granted TPS in Turkey. He was apprehended near the Turkish-Greek land border when travelling with a group of people allegedly trying to enter into Greek territory in June 2018. Subsequently, the Applicant was detained, transferred to the Turkish-Syrian border, and – after he was coerced to sign a preprinted “voluntary return” form – deported to Syria. Here the Court came to the conclusion that Turkey, by its actions, knowingly had exposed the Applicant to a “real risk” of being subjected to treatment in violation of Article 3 of the ECHR.[60] In this regard, it should be noted that there are reports of Syrian deportees and returnees – from Turkey and from other neighbouring countries – who were arrested or forcibly disappeared after their return to Syria.[61] In October 2019, Human Rights Watch reported that Turkish authorities in Istanbul and Antakya had arbitrarily detained and deported Syrians to northern Syria, despite active hostilities in the region.[62] These deportations should be read in conjunction with the Turkish authorities’ publicly-stated objective, reported by the European Asylum Support Office: to create “safe zones” in Syria in which to return refugees.[63]
  • The practice of forced “voluntary return” was still widespread during the time period relevant for the aforementioned applications. For example, the İzmir Bar reported that people detained in removal centres have been systematically forced to sign “voluntary repatriation papers”. The people affected are not informed[64] about their legal rights and not allowed to access legal aid.[65] In Hatay, there have been allegations of violence, handcuffing, and pressure to apply for “voluntary return” by guards.[66] Lawyers have also suggested that poor detention conditions in Removal Centres are likely used as a tool to pressure migrants into “voluntary return”.[67] To the knowledge of the Interveners, this practice is still happening today.[68]
  • Furthermore, the practice of forced “voluntary return” is also directed towards non-Syrian nationals, e.g. Afghans.[69] The Human Rights Association has announced that the Afghan refugees are subjected to torture and pressure in the Harmandalı (İzmir) Removal Centre.[70] The Interveners received reports about mass deportations of Afghan citizens to Iran and were told that, in autumn 2021, approximately 30,000 Afghan nationals were being held in removal detention in Turkey.[71]
  • In practice, most non-Syrian nationals never register for a residence permit in Turkey due to the several legislative shortcomings and practical obstacles set out above. Whoever does register – Syrians and non-Syrians alike – are often forced by the socioeconomic reality to move from their allocated city to economic centres – most often Istanbul.[72] Those unable to register for any kind of status are, de facto if not de jure, potentially subject to refoulement.

D. Inadequate Reception Conditions in Turkey

  • While those who manage to obtain a “kimlik” have the right to education and health care and the right to request a work permit[73] in Turkey, in practice, it is extremely difficult to actually exercise these rights. For example, according to the European Commission, “768,839 children with some kind of protection status were enrolled in formal education in Turkey by December 2020. However, more than 400,000 schoolaged refugee children were still out-of-school and did not have any access to education opportunities”.[74] Furthermore, although there are around 3.5 million Syrians registered in Turkey, only 60,000 Syrians have a work permit.[75] Conversely, the vast majority of migrants in Turkey work in the informal labour market,[76] and, thus, are subjected to exploitative labour conditions. Notably, the Interveners have received reports about migrants under the age of 18 being subjected to child labour.[77]
  • There is a broad consensus – both in the ECtHR and at international and European level – that asylum seekers are a particularly underprivileged and vulnerable population in need of special protection and that states have a positive obligation to provide material support and accommodation to asylum seekers.[78] However, minors, women, survivors of torture and violence, and LGBTIQ+ people have special reception needs because of their specific additional vulnerabilities which ought to be addressed. Nevertheless, in Turkey, there is a clear lack of such special reception conditions. Gender-based violence against refugee women, for example, persists as a risk.[79]At the same time, survivors of gender-based violence in Turkey face serious challenges, in particular discrimination and language barriers when they approach protection services.[80] Moreover, the capacity of women’s shelters in Turkey is quite low,[81] and receiving access is particularly difficult for refugee women.[82] At the same time, there are no shelters for LGBTIQ+ people, who – according to the domestic law in Turkey – are not even recognised as a vulnerable group.[83] Not least from such systematic shortcomings towards specific groups of refugees stems the Respondents State’s obligation to carefully examine the individual situation of every applicant before returning them to Turkey.
  • Finally, enforced destitution itself constitutes inhuman and degrading treatment or punishment contrary to Article 3 of the Convention. Those denied access to a residence permit – including through means of international protection – are denied shelter, food, and access to education, and are simultaneously excluded from the right to work and state support. In addition, based on the many reports on how pushbacks are executed the people affected are, in most cases, deprived of all their material belongings, including money, phones, and identification documents.[84] This deprivation further exacerbates the destitution pushback survivors face upon return to Turkey. While in detention, the people affected are provided with shelter and minimal food, and after being released from the detention centre, there is no State assistance offered by the Turkish government.[85] Read in conjunction with the Court’s most recent case law, it needs to be taken into account that the people affected – before being exposed to complete destituton – had already had been in an extremely vulnerable situation: they had been subjected to a violent pushback, and some may even have lost relatives or friends during the pushback. Therefore, they had undoubtedly been in a situation of extreme stress and most likely had already experienced feelings of intense pain and grief.[86]
  • Taken together, survivors of pushbacks face a situation of complete disregard of their human dignity upon return to Turkey. As a result, there are reasons for believing that the removal or return from Greece to Turkey will expose a person to treatment contrary to Article 3 of the Convention.

E. Racist Violence, Hate Speech & Increasing Risk of Physical Attacks

  • Over the last years, violent attacks targeting migrants have been increasing in Turkey.[87] This violence can also be observed by following the increasing hate speech on social media platforms which remain unsanctioned.[88] Moreover, in Annex 1, the Interveners submit a nonexhaustive list of attacks and statements of politicians since the end of 2016. The general escalation of racist sentiments should be read in conjunction with this inflammatory political rhetoric targeting refugees and migrants and the severe deterioration of the economic situation in Turkey.[89]
  • Under the scope of Article 2 of the ECHR, the Contracting States have a positive obligation to protect human life.[90] Given the extent of hate speech and physical attacks against migrants in Turkey, the Respondent State needs to take into account that a person fleeing from Turkey might be fleeing from racist violence and also assume that any person returned to Turkey may become an (arbitrary) target of a physical attack. Also from these circumstances, it follows that the Greek authorities are obliged to examine all applications individually.
  • Related to the preceding § 18, it is worth mentioning the violent attacks in Altındağ (Ankara) in 2021. A fight between Syrian and local youngsters triggered the attack of shops and homes belonging to Syrian refugees.[91] Following these events, the Turkish government started a so-called “dilution project”[92] to limit the refugee population to 25% of the total population in every neighbourhood: “Since May 2022, it is against the law for any region or area in Turkey to have a population of foreign nationals that is more than one-quarter of the total population”.[93] Refugees are “encouraged” to relocate to other neighbourhoods which have refugee populations lower than 25%, and it is reported that some refugees could not register their addresses due to this population limitation.[94]

III. CITIZENS OF TURKEY

  • It is well known that since the attempted coup on 15 July 2016, political criticism in Turkey has been heavily persecuted. However, the limited independence of the judiciary and widespread politically motivated criminal charges have always been problems in Turkey. Nevertheless, together with the State of Emergency (“SoE”), the situation has further deteriorated.[95] Due to the recent developments, international legal organisations felt the urge to establish the International Fair Trial Day, and within their initial statement, they underlined the systematic violations of the fair trial principles in Turkey.[96]
  • There is also the risk of severe torture in Turkey. For instance, the People’s Law Office (HHB) reported on Ayten Öztürk who was arrested in Beirut on 9 March 2018, extradited to Turkey on 13 March 2018, and was subsequently held in unofficial detention for 6 months until 28 August 2018. She was subjected to severe torture in Turkey.[97] In recent years, there are several judgments from different countries where the local courts decided in favor of non-extradition due to the severe risk of torture in Turkey.[98]
  • A joint report of Turkey-based human rights organizations, which covers 2019 and the first half of 2020, emphasizes that torture is not limited to police headquarters or demonstrations, but is a common practice in prisons.[99] There are a significant number of reports from other NGOs and rights organisations that support these findings.[100] In addition, it was reported that 45 pushback survivors were severely tortured by the Turkish soldiers upon their return. ÖHD, one of the interveners, lodged a criminal complaint; however, the case file was closed by the prosecutor’s office.[101]
  • Citizens of Turkey with criminal charges who are pushed back to Turkey face serious risk of immediate arrest, detention, and torture

IV. LACK OF INFORMATION

  • The Interveners come to the conclusion that, given the overall circumstances in Turkey, an individual examination of each claim is required to comply with the Respondent State’s obligations under the Convention, namely Article 3. Conversely, if a person – either a citizen of Turkey or a third country national – tries to obtain asylum in Greece, but is prevented from entering or staying in the country, and is therefore stopped from lodging claims for asylum, this denial would expose this person to a risk of ill-treatment and – if a third country national is concerned – even chain-refoulement to their country of origin. If, at the same time, the Greek authorities fail to provide the person who tries to obtain asylum in Greece with any relevant information about the Greek asylum procedures – and access to domestic remedies in Greece is not made available – this constitutes a violation of Article 13 in conjunction with Article 3 of the Convention.[102]

V. CONCLUSION

  • Considering the overall reception conditions in Turkey, the Interveners come to the conclusion that the Respondent State – from the moment a person enters Greek territory, both by land and sea – is obliged to conduct an in-depth analysis of the individual risks an asylum seeker faces in Turkey. There is reason to believe that the removal or return of an asylum seeker to Turkey would expose this person to treatment contrary to Article 3 due to restricted access to the asylum system in Turkey, which offers only, if at all, insufficient protection; the catastrophic social economic conditions to which migrants are subjected; and the widespread risk of racist violence. Where the Respondent State fails to conduct such an investigation, and even deprives the asylum seeker of the chance to present their claims, by pushing them back illegally, therefore violates its obligations under Article 3 of the Convention.

Finally, the Interveners are grateful for getting the opportunity to intervene in the aforementioned applications and hope to have assisted the Court with the explanations submitted.

Yours sincerely,

Melanie Aebli (on behalf of the Interveners)

Attorney at law

Annex:                           

  1) List of attacks and statements of politicians since the end of 2016

(not submitted by fax)   

2) European Commission, Turkey Report 2021 (see fn. 11)

3) ECRE, ‘Country Report: Turkey’ 2021 (see fn. 13)

4) ECRE, ‘Country Report: Turkey’ 2019 (fn. 16)

5) Expert Opinion issued by Stiftung ProAsyl (fn. 28)

6) Global Detention Project, Immigration Detention in Turkey (fn. 47)

7) Domestic Law of Turkey: Law on Foreigners and International                                Protection

8) Domestic Law of Turkey: Implementation Regulation for the Law on Foreigners and International Protection            

9) Domestic Law of Turkey: Temporary Protection Regulation


[1] See Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECtHR 2008.

[2] See Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 70-82, ECHR 2012.

[3] In Ilias and Ahemd v. Hungary the Court stated: “it is the duty of the removing State to examine thoroughly the question whether or not there is a real risk of the asylum seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement. If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum seekers should not be removed to the third country concerned”, Ilias and Ahemd v. Hungary [GC], no. 47287/15, § 134, Judgement of 21 November 2019.

[4] See M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 342, 343 and 362-68, with the references therein, ECHR 2011.

[5] See Tarakhel v. Switzerland [GC], no. 29217/12, § 105, ECHR 2014.

[6] Council of Europe/ECtHR Research Division, ‘Articles 2, 3, 8 and 13, The concept of a “Safe Third Country” in the case-law of the Court’, § 2, 9 February 2018.

[7] Ibid. § 4.

[8] Ilias and Ahemd v. Hungary [GC], no. 47287/15, § 139, Judgement of 21 November 2019.

[9] Ibid. § 141.

[10] See F.G. v. Sweden [GC], no. 43611/11, § 126, ECHR 2016.

[11] European Commission, Turkey Report 2021, Doc. Nr. SWD(2021) 290 final/2, 19 October 2021, p. 48, available at: https://ec.europa.eu/neighbourhood-enlargement/turkey-report-2021_en (in the Annex).

[12] Ibid., p. 49.

[13] See ECRE, ‘Country Report: Türkiye’, published in the Asylum Information Database (AIDA), 2021 Update, p. 20, available at: https://asylumineurope.org/wp-content/uploads/2022/07/AIDA-TR_2021update.pdf (in the Annex).

[14] In addition to the permits listed, Turkey offers a Short Term Residence Permit (Articles 31-33 LFIP, and Articles 28 and 29 of the Regulation for Implementation of the LFIP [Implementation Regulations]), a Family Residence Permit (Articles 34-37 LFIP, and Articles 30-34 Implementation Regulations), a Student Residence Permit (Articles 38-41 LFIP, and Articles 35-39 Implementation Regulations), a Long Term Residence Permit (Articles 42-45 LFIP, and Articles 40-43 Implementation Regulations), a Humanitarian Residence Permit (Articles 46 and 47 LFIP, and, Article 44 Implementation Regulations), and a Residence Permit For Victims of Human Trafficking (Articles 48 and 49 LFIP, and Articles 45 and 46 Implementation Regulations). However, these types of residence permits are not of practical relevance in the context discussed here.

[15] Information provided by Asylum Lawyers who are members of the Interveners, see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 45.

[16] The legal basis of the 2014 Temporary Protection Regulation (TPR) is Article 91 LFIP. As a piece of secondary legislation, the TPR must be compliant and consistent with the general normative framework laid down by the LFIP itself. See ECRE, ‘Country Report: Turkey’, published in the Asylum Information Database (AIDA), 2019 Update, p. 120, available at: https://asylumineurope.org/wp-content/uploads/2020/04/report-download _aida_tr_2019update.pdf (in the Annex).

[17] Temporary Article 1 TPR indicates that Syrian nationals, stateless persons and refugees who came to or crossed Turkey’s borders from Syria due to the events that took place in Syria since April 2011 are taken under “temporary protection”.

[18] Information provided by Asylum Lawyers who are members of the Interveners; see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 78.

[19] See ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 120.

[20] See Human Rights Watch, ‘Turkey Stops Registering Syrian Asylum Seekers’, 16 July 2018, available at: https://www.hrw.org/news/2018/07/16/turkey-stops-registering-syrian-asylum-seekers.

[21] Provincial Directorate of Migration Management (“PDMM”), today Provincial Presidency of Migration Management (“PPMM”).

[22] European Commission, Turkey Report 2021, fn. 11, p. 50.

[23] Information provided by Asylum Lawyers who are members of the Interveners.

[24] See ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 89.

[25] See Human Rights Watch, ‘Turkey Stops Registering Syrian Asylum Seekers’, fn. 20.

[26] Information provided by Asylum Lawyers who are members of the Interveners, see also ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 70-71, and also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 91-92.

[27] In the file of a person who loses their “kimlik” based on attempting to leave, or leaving Turkey illegally, the code V78 will be registered. This code indicates that no new “kimlik” can be issued. Information provided by Asylum Lawyers who are members of the Interveners.

[28] For specific information regarding citizens of Iraq and Afghanistan, Chechens, Daghestanis and Tajiks, Somali people and Iranians see ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 79-81; for specific information on citizens of Afghanistan also see Expert Opinion issued by Stiftung ProAsyl, ‘The Situation of Afghan Refugees in Turkey’, March 2021, available at: https://www.proasyl.de/wp-content/uploads/PA_Expert-Opinion_The-Situation-of-Afghan-Refugees-in-Turkey.pdf (in the Annex).

[29] Information provided by Asylum Lawyers who are members of the Interveners.

[30] See ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 90.

[31] See ibid, p. 89.

[32] See ibid, p. 91.

[33] Information provided by Asylum Lawyers who are members of the Interveners, see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 49.

[34] Information provided by Asylum Lawyers who are members of the Interveners.

[35] For specific information on citizens of Afghanistan see Expert Opinion issued by Stiftung ProAsyl, fn. 28.

[36] Information provided by Asylum Lawyers who are members of the Interveners.

[37] See fn. 21.

[38] See AIDA & ECRE, ‘Registration under Temporary Protection – Turkey’, 30 November 2020, available at: https://www.asylumineurope.org/reports/country/turkey/registration-under-temporary-protection.

[39] See ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 45-46.

[40] Information provided by Asylum Lawyers who are members of the Interveners.

[41] See AIDA & ECRE, fn. 38.

[42] European Commission, Turkey Report 2021, fn. 11, p. 17-18.

[43] Information provided by Asylum Lawyers who are members of the Interveners, see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 115.

[44] See ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 87-89, see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 117-118.

[45] Information provided by Asylum Lawyers who are members of the Interveners; see also ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 87.

[46] Information provided by Asylum Lawyers who are members of the Interveners.

[47] Information provided by Asylum Lawyers who are members of the Interveners; see also Global Detention Project, ‘Country Report, Immigration Detention in Turkey’, October 2021, available at: https://www.globaldetentionproject.org/immigration-detention-in-turkey -trapped-at-the-crossroad-between-asia-and-europe#:~:text=Numerous%20observers%20have%20reported%20poor,detainees%20access%20to%20legal%20assistance (in the Annex).

[48] See Council of Europe’s Committee for the Prevention of Torture (CPT), ‘Report to the Turkish Government

on the visit to Turkey carried out by the (CPT) from 16 to 23 June 2015, CPT/Inf (2017) 32, available at: https://rm.coe.int/pdf/ 168075ec0a; this Report was summarised by the Stockholm Centre for Freedom, ‘CPT report highlights problems in Turkey’s immigration detention centers’, 18 October 2017, available at: https://stockholmcf.org/cpt-report-highlights-problems-in-turkeys- immigration-detention-centers/; furthermore, as mentioned in the ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 97, a series of judgments from the Constitutional Court have highlighted the need to provide adequate detention conditions in Turkey.

[49] Information provided by Asylum Lawyers who are members of the Interveners.

[50] For example, clients have reported that access to an outdoor yard was granted in groups, leaving them individually with 10 minutes yard time in the morning and 10 minutes in the evening.

[51] Information provided by Asylum Lawyers who are members of the Interveners.

[52] European Commission, Turkey Report 2021, fn. 11 p. 49.

[53] See ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 101; see also Global Detention Project, ‘Country Report, Immigration Detention in Turkey’, fn. 47, p. 50.

[54] See Türkiye İnsan Hakları ve Eşitlik Kurumu, Gazi̇antep Geri̇ Gönderme Merkezi̇ Zi̇yareti̇ Raporu (Rapor No: 2019/ 05), February 2019, p. 5, available at: https://www.tihek.gov.tr/upload/file_editor/2019/07/1562585466.pdf; see also sendika.org, ‘HDP’li Toğrul, Antep Geri Gönderme Merkezi’ndeki intihar iddialarını Meclis’e taşıdı’, 3 August 2019, available at: https://sendika.org/2019/08/hdpli-togrul-antep-geri-gonderme-merkezindeki-intihar-iddialarini-meclise-tasidi-556817/.

[55] Human Rights Foundation of Turkey, ‘24 June 2021, Daily Report on Human Rights Violations’, available at: https://en.tihv.org.tr/documentation/24-june-2021-hrft-documentation-center-daily-human-rights-report/ i; critical about the detailed statement of the Governor see Statement of the Izmir Bar Association, issued on 6 August 2021, available at: https://www.izmirbarosu. org.tr/HaberDetay/2370/harmandali-geri-gonderme-merkezi-nde-yasamini-yitiren-suriyeli-multeci-ahmed-maslem-anildi.

[56] Information provided by Asylum Lawyers who are members of the Interveners.

[57] See Norwegian Refugee Council, ‘Dangerous Ground: Syrian refugees face an uncertain future’, 2018, available at: https://www.nrc.no/globalassets/pdf/reports/dangerous-ground—syrias-refugees-face-an-uncertain-future/dangerous-ground—syrian-refugees-face-an-uncertain-future.pdf; Amnesty International, ‘Sent to a War Zone: Turkey’s illegal deportations of Syrian Refugees’, 2019, available at: https://www.amnesty.org/download/Documents/EUR4411022019ENGLISH.pdf; Jesse Marks, ‘Pushing Syrian Refugees to Return’, Carnegie Endowment for International Peace, 1 March 2018, available at: https://carnegieendowment.org/sada/75684; Refugees International, ‘Insecure future: Deportations and Lack of Legal Work for Refugees in Turkey’, 19 September 2019, available at: https://www.refugeesinternational.org/reports/2019/9/18/insecure-future-deportations-and-lack-of-legal-work-for-refugees-in-turkey.

[58] Information provided by Asylum Lawyers who are members of the Interveners; see also Stockholm Centre for Freedom, ‘Syrian journalist in Turkey forced to sign repatriation document for ‘banana’ video protesting discrimination’, 4 November 2021, available at: https://stockholmcf.org/syrian-journalist-in-turkey-forced-to-sign-repatriation-document-for-banana-video-protesting-discrimination/.

[59] See Akkad v. Turkey, no. 1557/19, Judgement of 21 July 2022.

[60] See ibid., § 75.

[61] See ibid., § 11; see also Syrian Network for Human Rights, ‘The Syrian Regime Continues to Pose a Violent Barbaric Threat and Syrian Refugees Should Never Return to Syria’, 15 August 2019, available at: https://snhr.org/wp-content/pdf/english/The_Syrian_regime_ continues_to_pose_a_severe_barbaric_threat_and_Syrian_refugees_should_never_return_to_Syria_en.pdf.

[62] See Human Rights Watch, ‘Turkey: Syrians Being Deported to Danger’, 24 October 2019, available at: https://www.hrw.org/news/2019/10/24/turkey-syrians-being-deported-danger.

[63] See EASO (today EUAA) Country Guidance: Syria, September 2020, p. 44, available at: https://euaa.europa.eu/sites/default/files/Country_Guidance_Syria_2020.pdf.

[64] In connection with insufficient information, the Court, in the case Akkad v. Turkey (fn. 59), identified a violation of Article 13 ECHR.

[65] See İzmir Bar, ‘Final Report of Removal Centres and Administrative Detention from Lawyers’ Sights Workshop’, June 2019, available at: https://www.izmirbarosu.org.tr/Upload/files/geri_gonderme_rapor.pdf.

[66] See Dev Haber, ‘Antep Geri Gönderme Merkezin’de mülteciler ters kelepçeleniyor’, 25 December 2017, available at: http://bit.ly/2ETCOwC.

[67] See ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 101.

[68] For an incident of possible summary return, including physical attacks on lawyers, see: gazeteduvar.com.tr, ‘İzmir Harmandalı GGM’de neler oluyor? Çok sayıda itfaiye ve sağlık ekibi sevk edildi, avukatlar içeri alınmadı’, 24 June 2022, available at: https://www.gazeteduvar. com.tr/izmir-harmandali-ggmde-neler-oluyor-cok-sayida-itfaiye-ve-saglik-ekibi-sevk-edildi-avukatlar-iceri-alinmadi-haber-1570795.

[69] Information provided by Asylum Lawyers who are members of the Interveners; see also a statement of the İzmir Bar Association reported on by biant.org: ‘Refugees from Afghanistan handed over to Taliban by force’, 19 April 2022, available at: https://m.bianet.org/english/migration/260665-turkey-refugees-from-afghanistan-handed-over-to-taliban-by-force.

[70] Announcement of the Human Rights Association reported on by bianet.org: ‘Afghans in İzmir forced to sign “voluntary return papers”’, 22 Apirl 2022, available at: https://m.bianet.org/english/migration/260844-afghans-in-izmir-forced -to-sign-voluntary-return-papers.

[71] Information provided by Asylum Lawyers who are members of the Interveners.

[72] Ibid.

[73] Applying for a work permit is a burdensome, costly procedure, and the responsibility of the employer, and it must be shown that the job cannot be done by a Turkish citizen in order for a permit to be granted. Information provided by Asylum Lawyers who are members of the Interveners.

[74] European Commission, Turkey Report 2021, fn. 11, p. 17.

[75] IInformation provided by Asylum Lawyers who are members of the Interveners; see also Centre for Global Development, ‘A new policy to better integrate refugees into host-country labor markets’, 22 November 2019, available at: https://reliefweb.int/report/turkey/new-policy-better-integrate-refugees-host-country-labor-markets.

[76] Information provided by Asylum Lawyers who are members of the Interveners; see also Refugees International, ‘“I am only looking for my rights” Legal employment still inaccessible for refugees in Turkey’, December 2017, available at: https://www.asylumineurope.org/sites/default/files/resources/ri_report_employmentturkey.pdf.

[77] Information provided by Asylum Lawyers who are members of the Interveners.

[78] See M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 250, ECHR 2011.

[79] See ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 109.

[80] See diken.com.tr, ‘Alo 183’ten şiddet mağduru için yanıt: Ama o kadın değil ki mülteci bayan’, 2 April 2016, available at:

https://www.diken.com.tr/alo-183ten-siddet-magduru-icin-yanit-ama-o-kadin-degil-ki-multeci-bayan/.

[81] Mültecilerle Dayanışma Derneği, ‘Mülteci̇ Kadinlarin Durumuna İli̇şki̇n Bi̇r Değerlendi̇rme:”Hem Mülteci̇ Hem Kadin: Mülteci̇ Kadinlar Ne Yaşiyor? Ne Yapmali?”’, 9 March 2018, available at: https://multeci.org.tr/2018/03/09/multeci-kadinlarin-durumuna-iliskin- bir-degerlendirmehem-multeci-hem-kadin-multeci-kadinlar-ne-yasiyor-ne-yapmali/.

[82] See GOAL Global, ‘Protection Monitoring Report on Syrian Nomadic and Semi-Nomadic Communities in Gaziantep, Şanlıurfa, Adana and Mersin’, 31 August 2021, available at: https://reliefweb.int/report/turkey/protection-monitoring-report-syrian-nomadic-and-semi- nomadic-communities-gaziantep-0.

[83] See ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 111; see also Hayriye KARA & Damla ÇALIK, ‘Waiting to be “Safe and Sound”: Turkey as a LGBTI Refugees’ Way Station’, July 2016, available at: https://kaosgldernegi.org/images/library/2016multeci-raporu2016.pdf.

[84] See Border Violence Monitoring Network, ‘The Black Book of Pushbacks – Volumes I & II’, December 2020, available at: https://left.eu/issues/publications/black-book-of-pushbacks-volumes-i-ii/; see also platform on mapping ‘Drift-backs’ in the Aegean Sea, launched by Forensic Architecture in July 2022, available at: https://aegean.forensic-architecture.org/.

[85] İzmir Bar, 2019, “Avukatların Gözünden Geri Gönderme Merkezleri ve İdari Gözetim Alanları Çalıştayı Raporu” available at: https://www.izmirbarosu.org.tr/Upload/files/geri_gonderme_rapor.pdf.

[86] See Safi and Others v. Greece, no. 5418/15, § 196, Judgement of 7 July 2022.

[87] See Amnesty International, ‘Country Report Turkey’. 2021, available at: https://www.amnesty.org/en/location/europe-and- central-asia/turkey/report-turkey/, see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 83.

[88] See ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 83.

[89] Information provided by Asylum Lawyers who are members of the Interveners.

[90] See Osman v. the United Kingdom [GC], no. 23452/94, § 115, Reports 1998-VIII; and Branko Tomašić and Others v. Croatia, no. 46598/06, § 50, Judgement of 15 January 2009.

[91] See, for example, swissinfo.ch, Syrian properties in Ankara attacked after youth killed, 12 August 2021, available at: https://www.swissinfo.ch/eng/syrian-properties-in-ankara-attacked-after-youth-killed/46862556; and observers.france24.com, ‘’A nightmarish night’: Syrian neighbourhood in Ankara attacked after deadly fight’, 13 August 2021, available at: https://observers.france24.com/en/middle-east/20210818-syrian-neighbourhood-ankara-turkey-attacked.

[92] See BirGün, ‘’Seyreltme’ projesinin detayları: 16 il Suriyelilere kapatıldı’, 22. February 2022, available at: https://www.birgun.net/haber/seyreltme-projesinin-detaylari-16-il-suriyelilere-kapatildi-378070

[93] ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 83.

[94] See al-monitor.com, ‘Turkey’s quota plan for refugees alarms rights activists’, 23 February 2022, available at: https://www.al-monitor.com/originals/2022/02/turkeys-quota-plan-refugees-alarms-rights-activists.

[95] See Şerife Ceren Uysal, ‘Power Politics versus the Rule of Law in Turkey: A Case Study’, in: The Rule of Law in Retreat: Challenges to Justice in the United Nations World, ed. Slawomir Redo, London, Lexington Books, 2022, p. 128.

[96] See the statement of the International Fair Trial Day and the Ebru Timtik Award, ELDH, AED and others, 23 February 2021, available at: https://eldh.eu/2021/02/international-fair-trial-day-and-the-ebru-timtik-award-hold-the-date- 14-june-2021/; and the joint statement of the initial International Fair Trial Day and the Ebru Timtik Award, ELDH, AED and others, 14 June 2021,available at: https://eldh.eu/2021/06/joint-statement-international-fair-trial-day-14-june-2021/.

[97] See İşkence Raporu, ‘Lübnan’dan Türkiye’ye iade edilen Ayten Öztürk’e gözaltında ağır işkence’, 30 August 2018, available at: https://iskenceraporu.com/ayten-ozturke-gozaltinda-agir-iskence/

[98] See Kronos 35, ‘İsveç’te Yüksek Mahkeme öğretmenin Türkiye’ye iade talebini reddetti’, 16 July 2022, available at: https://kronos35.news/tr/isvecte-yuksek-mahkeme-ogretmenin-turkiyeye-iadesini-durdurdu/, Uluslararası Af Örgütü (Amnesty Turkey), ‘Malezya: Türkiye’ye iade, gönderilen üç kişi için işkence riski taşıyor’, 12 May 2017, available at: https://www.amnesty.org.tr/icerik/malezya-turkiyeye-iade-gonderilen-uc-kisi-icin-iskence-riski-tasiyor.

[99] See Human Rights Association & and others, ‘Türkiye’de Değişik Boyutlarıyla İşkence Gerçeği’, p. 83, available at: https://hakinisiyatifi.org/wp-content/uploads/2020/06/26-Haziran-2020-Ortak-Bas%C4%B1n-Ac%CC%A7%C4%B1klamas%C4%B1-Eki-Veriler.pdf.

[100] See, for example, Freedom From Torture, ‘Torture in Turkey: past, present and future?’, April 2017, available at: https://www.freedomfromtorture. org/sites/default/files/2019-04/Turkey%20briefing%20FINAL%20170410.pdf; Human Rights Association, ‘ İHD 2019 Report On Human Rights Violations In Turkey’, May 2020, available at: https://www.fidh.org/IMG/pdf/i_hd_2019_violations_report_and_summary_table-2.pdf; Stockholm Centre For Freedom, ‘Council of Europe’s CPT confirms continued ill-treatment and torture in Turkey’, 5 August 2020, available at: https://stockholmcf.org/council-of-europes-cpt-confirms-continued-ill-treatment-and-torture-in-turkey/.

[101] See evrensel.net, ‘İHD ve Meriç nehrine atılan mültecilerin yakınlarından yetkililere çağrı: Kayıplar bulunsun’, 21 September 2021, available at: https://www.evrensel.net/haber/443210/ihd-ve-meric-nehrine-atilan- multecilerin-yakinlarindan-yetkililere-cagri-kayiplar-bulunsun; gazeteduvar.com.tr, ‘Meriç Nehri’ne atılan mülteciler: Dosyada iki aydır ilerleme yok’, 28 October 2021, available at: https://www.gazeteduvar. com.tr/meric-nehrine-atilan- multeciler-dosyada-iki-aydir-ilerleme-yok-haber-1539868; evrensel.net, ‘Meriç’e atılan sığınmacıların dosyası kapatıldı’, 16 February 2022, available at: https://www.evrensel.net/haber/455202/merice-atilan-siginmacilarin-dosyasi-kapatildi.

[102] See Kebe and Others v. Ukraine, no. 12552/12, Judgement of 12 January 2017.

Observation Mission in Turkey – September 2021

Observation mission on the Human Right’s situation of the Turkish lawyers members of the a ÇHD and the People’s Law Office

Istanbul, 15th to 20th of September

Asociación libre de Abogadas y abogados (ALA)

Report on the Situation

From the 15th to the 20th of September in Istanbul, three ALA lawyers took part in a fact-finding mission to observe the human rights situation of imprisoned Turkish lawyers accused of, among other crimes, terrorism, some of who have been in pre-trial detention for more than five years. These lawyers belong to various progressive lawyers’ associations such as ÇHD, OHD or the People’s Law Office.

The mission consisted of about fifty lawyers from different European associations and collegial institutions. The ALA lawyers are also representatives of AED (European Democratic Lawyers) of which ALA is a member and which is currently co-chaired by a member of our association.  

Download the full report of the ALA- observation mission

Download the full report of the Italian observation mission

Press release from Istanbul- Communiqué de Presse

En Français plus en bas de la page

Press release issued by the legal Fact Finding Mission of AED-EDL, taking place in Istanbul from the 15th September to the 20th September, to monitor and observe current mass trials against lawyers in Turkey.

Lawyers from AED–EDL have participated in the Fact Finding Mission in Istanbul from the 15th to the 20th September 2021 together with other represented international organizations, Bar Associations and the CCBE. The aim of the mission has been to monitor and observe mass trials against lawyers in Turkey. The Fact Finding Mission participants observed two hearings of the trial against Selçuk Kozağaçlı’s, Barkın Timtik’s and Oya Aslan, they have visited lawyers detained in Edirne, Kandıra and Silivri maximum security prisons, and have held meetings with the president of the Istanbul Bar Association, members of the defense and other lawyers in Turkey.

Currently, several trials against members of the lawyers’ organization Çağdaş Hukukçular Derneği (ÇHD), member of AED – EDL, are taking place, in which 28 criminal defense lawyers are accused of being members of a terrorist group, in violation of the UN Basic Principles on the Role of Lawyers. Some of the defendants have already been convicted and sentenced to heavy prison terms, others are still in pretrial detention.

AED criticizes the fact that our colleagues are convicted or face charges stemming from the performance of their professional activities. Lawyers cannot be identified with their clients’ causes. 

AED condemns the fact that the charges used by the prosecution and the court stem from the extra-professional and private life of lawyers. Being a member of a lawyers’ association or a law firm composed by lawyers assuring the defense of political prisoners, social movements, participating in protests or funerals of clients and colleagues, addressing an international support (…) are used as presumed evidence of the participation in terrorist activities by the prosecution.

AED reaffirms that those non-criminal activities are protected by the rights of freedom of expression and association of lawyers.

The members of the AED-EDL mission have clearly witnessed the fact that the defense did not have access to the original documents used by the prosecutor as evidence and was denied the right to interrogate the secret witnesses. The use of this evidence is void as it constitutes a clear violation of the equality of arms, adversarial proceedings and the principle of contradiction, which are guaranteed by article 6 of the European Convention on Human Rights.

The refusal of the prosecution to produce the original documents is to be assimilated to a lack of proof and is enough for the immediate release of all lawyers and the waiver of charges.

AED considers that the Turkish authorities are using the judicial power instrumentally to attack the lawyers and restrain their professional freedom.

Istanbul, 20th of September 2021

Communiqué de presse de la mission d’observations de l’AED-EDL, qui a eu lieu à Istanbul du 15 au 20 septembre, afin d’observer les procès de masse en cours contre les avocats en Turquie.

Des avocats de l’AED-EDL ont participé à la mission d’enquête à Istanbul du 15 au 20 septembre 2021 avec des organisations internationales représentatives de la profession d’avocat, des barreaux et le CCBE. L’objectif de la mission était de suivre et d’observer les procès de masse contre des avocats en Turquie. Les participants à la mission d’observation ont assisté à deux audiences du procès contre Selçuk Kozağaçlı, Barkın Timtik et Oya Aslan. Ils ont rendu visite à des avocats détenus dans les prisons de haute sécurité d’Edirne, Kandıra et Silivri, et ont rencontré le président du Barreau d’Istanbul, des avocats de la défense ainsi que d’autres avocats turcs.

Actuellement, plusieurs procès contre des membres de l’organisation d’avocats Çağdaş Hukukçular Derneği (ÇHD), membre de l’AED – EDL ont lieu avec 28 avocats de la défense accusés d’être membres d’un groupe terroriste, en violation des Principes de base des Nations unies relatifs au rôle des avocats. Certains des accusés ont déjà été reconnus coupables et condamnés à de lourdes peines de prison, d’autres sont toujours en détention provisoire.

L’AED dénonce le fait que nos confrères soient condamnés ou fassent l’objet de poursuites en raison de leur exercice professionnel. Les avocats ne peuvent pas être assimilés à leurs clients et aux causes qu’ils défendent.

L’AED condamne le fait que le ministère public et le tribunal utilisent la vie extra-professionnelle et privée des avocats comme des éléments à charges. Le fait d’être membre d’une association d’avocats ou d’un cabinet composé d’avocats assurant la défense de prisonniers politiques et des mouvements sociaux, de participer à des manifestations ou d’assister aux funérailles de clients et de confrères, de signer un appel à un soutien international… ne peuvent être utilisés comme des éléments de preuve d’une participation présumée à des activités terroristes.

L’AED réaffirme le fait que ces activités dépourvues de tout caractère délictuel et criminel sont protégées par le droit à la liberté d’expression et d’association des avocats.

Les membres de la mission AED-EDL ont été témoins du fait que la défense n’a pas eu accès aux documents originaux de la procédure dont les copies sont la base des poursuites par le procureur et ont pu constater l’impossibilité de la défense d’interroger les témoins anonymes. L’utilisation de ces preuves entache de nullité la procédure car elle constitue une violation manifeste de l’égalité des armes, du principe du contradictoire et des droits de la défense garantis par l’article 6 de la Convention européenne de sauvegarde  des droits de l’homme et des libertés fondamentales.

Le refus par les autorités de poursuite de produire les documents originaux doit être assimilé à une absence de preuve et doit conduire à la libération immédiate de tous les avocats ainsi qu’à l’abandon des charges à l’encontre de nos confrères.

L’AED considère que les autorités turques instrumentalisent le pouvoir judiciaire pour s’attaquer à la profession d’avocat et restreindre la liberté professionnelle des avocats.

Istanbul, 20 Septembre 2021

The judicial scandal has to come to an end – the imprisoned lawyers must be released

On November 11, the ÇHD I criminal case, which started in 2013, will continue at the 1st instance, before the 18th Heavy Penal Court in Istanbul. The victims of this long lasting trial are the accused 22 lawyers, all members of the Turkish Lawyers’ Organization ÇHD (Progressive Lawyers of Turkey) and all working in one of the two offices of the People’s Law Office. At the opening of the trial, 9 of the accused had already served 11 months in pre-trial detention. However, in order not to put a disproportionate burden on the defendants, the court released the last defendants from pre-trial detention 14 months after their arrest in January 2013.

The trial could have ended long ago if the prosecution had not initiated a second criminal case (ÇHD II trial) in 2018, with the approval of the 37th Heavy Penal Court, also against lawyers of the ÇHD and the People’s Law Office. 8 of the 20 lawyers accused in this case were also accused in the ÇHD I trial. In both proceedings, the defendants are accused of supporting, being members of, or directing a terrorist organization, on the same evidence. In September 2017, pre-trial detention was ordered for the defendants. One year later, the proceedings were opened. After the first week of hearings, the court ordered the release of all defendants from pre-trial detention. After an appeal by the public prosecutor’s office, 13 lawyers were again remanded in custody.

What the 18th Criminal Chamber failed to achieve in 4 years, the 37th Heavy Penal Court achieved in half a year after the opening of the proceedings. The accused were sentenced to prison terms between 2 and over 18 years. The sentences were largely confirmed in the Court of Appeal and the Supreme Court.

The public prosecutor’s office and the 37th Heavy Penal Court were aware of the proceedings pending before the 18th Criminal Chamber when the new proceedings were opened. They were also aware that 8 defendants in the ÇHD II trial had already been charged in the ÇHD I trial. They likewise knew that the principle “ne bis in idem” prohibits sentencing defendants twice for the same crime. The prosecutors and the 37th Heavy Penal Court must answer as to why they interfered in the current ÇHD I trial by opening a second trial. The convictions by the 37 Heavy Penal Court prevent the 18th Heavy Penal Court from pronouncing sentences on identical defendants. The 18th Heavy Penal Court is therefore also prevented from pronouncing lesser sentences, stopping the proceedings against the accused, or acquitting the accused. This situation currently affects the following defendants: Att. Selçuk Kozağaçlı , Att. Barkin Timtik, Att. Oya Aslan and Att.Günay Dag.

The Commission of Inquiry conducted in October 2019 by 23 lawyers’ organizations and bar associations from all over the world in Istanbul pointed out violations of the `principles of fair trial in the two ÇHD trials in its analysis and report “Fact-finding mission on CHD’s trials, Breach of Fair Trial, Independence of the Judiciary and Principles, on the Role of Lawyers, October 2019, Istanbul”

One of the lawyers accused in both trials, Att. Ebru Timtik, paid with her life for her struggle for fair trials. She went on hunger strike. The court refused to release her temporarily from detention in order to recover from the consequences of the hunger strike. Her colleague Att. Aytac Ünsal, who also went on hunger strike, only survived because the Court of Appeal, aware of the worldwide protests following the death of Ebru Timtik, did not want to be responsible for another victim of its intransigence.

If the 18th Heavy Penal Court is to avoid further damage to the reputation of the Turkish judiciary, the only option left to it is to acquit the accused, or to close the case.

Supported by

▪ European Association of Lawyers for Democracy and World Human Rights (ELDH)
▪ Avocats Européens Démocrates (AED-EDL)
▪ International Association of Democratic Lawyers (IADL) representative at the UN Vienna
▪ Confederation of Lawyers of Asia and the Pacific (COLAP)
▪ Asociación Americana de Juristas (AAJ)
▪ Council of Bars and Law Societies of Europe (CCBE)
▪ L’ORDRE DES BARREAUX FRANCOPHONES ET GERMANOPHONE DE BELGIQUE, (AVOCATS.BE) ▪ Ordre des avocats de Paris
▪ Lawyers for Lawyers
▪ Associazione Nazionale Giuristi Democratici (Italy)
▪ Défense sans frontière – Avocats solidaires (DSF–AS)
▪ Democratic Lawyers Association of Bangladesh (DLAB)
▪ Dutch League for Human Rights
▪ Foundation Day of the Endangered Lawyer

Fact-Finding Mission on CHD Trials in Turkey

 

Breach of a fair trial, independence of the judiciary and principles on the role of Lawyers.

October 2019, Istanbul

A group of 15 lawyers from 7 European countries met in Istanbul from 13 till 15 October 2019 for a fact-finding mission to clarify the legal circumstances that led to the conviction of the following 18 Turkish lawyers by the 37 High Criminal Court of Istanbul in March 2019:

– For “founding and leading a terrorist organization” – Barkin TIMTIK: 18 years and 9 months For “membership of a terrorist organization” – Ebru TIMTIK and Özgür YILMAZ: 13 years and 6 months – Behiç ASÇI and Sükriye ERDEN: 12 years – Selçuk KOZAGACLI (President of the ÇHD) : 11 years and 3 months – Engin GÖKOGLU, Aytac ÜNSAL and Süleyman GÖKTEN : 10 years and 6 months – Aycan ÇIÇEK and Naciye DEMIR: 9 years – Ezgi CAKIR: 8 years

– For “willfully and knowingly aiding a terrorist organization” – Aysegül CAGATAY, Yagmur EREREN, Didem Baydar ÜNSAL and Yaprak TÜRKMEN: 3 years 9 months – Zehra ÖZDEMIR and Ahmet MANDACI: 3 years, 1 month and 15 days (sentence reduced because of their presence at the hearing on 20 March 2019, unlike the other defendants).

The European lawyers of the monitoring team came from Austria, Belgium, Catalonia/Spain, Greece, Germany, France, and Italy. They represented, among others, two international associations of lawyers, two European lawyers’ organizations, the European umbrella association of bar associations, various national and regional bar associations and lawyers’ organizations.

These are their findings: REPORT

The lawyers of the monitoring team represented the following organizations:

  • ELDH – European Association of Lawyers for Democracy and World Human Rights
  • AED-EDL – European Democratic Lawyers
  • The foundation The Day of the Endangered Lawyer
  • IADL – International Association of Democratic Lawyers
  • Progress Lawyers Network
  • Giuristi Democratici
  • CCBE The Council of Bars and Law Societies of Europe
  • CNB – French National Bar Council (Conseil national des barreaux)
  • OIAD – Observatoire International des Avocats en Danger (The International Observatory
    of Endangered Lawyers)
  • UCPI – Unione delle Camere Penali Italiane
  • Consiglio Nazionale Forense (Italian National Bar Association)
  • DSF AS – Défense Sans frontière – Avocats Solidaires
  • UIA International Association of Lawyers
  • OBFG/Avocats.be (Association of French speaking Bars of Belgium)
  • Paris Bar Association
  • Athens Bar Association
  • Barcelona Bar Association
  • Berlin Bar Association
  • Brussels (French-speaking) Bar Association
  • Brussels (Dutch-speaking) Bar Association (NOAB)
  • Liège Bar Association
  • Vienna Bar Association

THE CATALAN REFERENDUM TRIAL

After gathering in Madrid on the morning of February 9th, 2019 and discussing the impending Catalan Referendum Trial, which will begin in the Spanish Supreme Court on February 12th, 2019, Avocats Européens Democrates-European Democratic Lawyers (AED-EDL) has reached the following CONCLUSIONS:

1.- There is concern that all the procedural guarantees may not be met during the trial, due to the following reasons:

– The first trial session (February 12th) was set on February 1st. This does not give enough time for the defence teams to prepare properly.

–  The different defence teams do not have full access to the total information on the trial. For instance, they do not know the identity of the police officers who will testify during the hearings, only their identification numbers.

–  Most of the witnesses during the trial will be police officers. Several of the witnesses proposed by the defence teams have been rejected by the Court.

–  Nine out of the twelve defendants are in pre-trial detention and have been in this situation for several months, which clearly difficults the preparation for the hearings. They are currently being held in prisons in Madrid, hundreds of kilometres away from their defence attorneys and families.

–  There are three accusing parties in this trial: the State Prosecutor, the State Attorney and the far right-wing political party, Vox; each of them with their own accusation and agenda.

2.- There is concern regarding the prohibition of arbitrary detention:

–  We call for the immediate release of the nine defendants in pre-trial detention. We believe they are in prison due to political reasons and call for this situation to stop1.

–  In regards to the imprisoned elected officials, we would like to point out that the recent European Court of Human Rights (ECHR) Selahattin Demirtaş v. Turkey judgment, issued on 20 November 2018, concluded that Turkey had violated Article 18 of the Convention (limitation on use of restrictions on rights, i.e., the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed) and the right to vote and hold office, with regards to Demirtaş’ pre-trial detention. There is an undeniable similarity to the case of the imprisoned elected officials.

– The nine defendants who are in pre-trial imprisonment will be transferred daily back and forth from the prisons they are being held at to the Court. This implies waking up at 6 am on a daily basis, travelling during at least two hours a day, and being held in separate quarters during breaks in each session. This will happen on a daily basis for three months. It can have negative implications on the ability to defend oneself. The conditions of transport from Catalan prisons to the detention centres in Madrid have been denounced in the past on the basis of being mocked and ill-treated by police officers3. We would like to remind the public that the ECHR in the recent Mariya Alekinha and others v Russia judgment4, the Court considered that the conditions of the applicants’ transport to and from the trial hearings exceeded the minimum level of severity and amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

3.- There is concern regarding the interpretation of the right to peaceful assembly carried out by all of the accusations (State Prosecutor, State Attorney and far right-wing political party Vox):

– A non-restrictive interpretation of what is “violence” is extremely dangerous for our fundamental rights and civil liberties. One must tread carefully on these grounds.

– According to the accusations, on September 20th, 2017, thousands of people gathered on the street, in a demonstration, which blocked the work the police was carrying out and resulted in damages in two police cars. These events, according to the prosecuting parties, warrants charges of rebellion or sedition, which can imply prison sentences that could reach up to 25 years per defendant.

– If what took place on this date was an act of peaceful civil disobedience, as all defence teams claim (something which shall be determined during the outcome of the trial), we believe that any conviction could result in a violation of the European Convention of Human Rights.

4.- This is not a Spanish affair, but a European one, which can have serious effects on the rule of law. If peaceful civil disobedience is criminalized, all social movements in Europe must fear for their future existence.

5.- There is concern regarding the right to a fair trial:

–  Members of the Supreme Court are elected by the Government of Judges (CGPJ), which is elected by the Spanish Parliament. This can have a serious effect on the independence and political inclinations of different magistrates.

–  We challenge the jurisdiction of the Supreme Court to try this case instead of the natural judge.

– The fact that the defendants are being tried in the Supreme Court eliminates the possibility of appealing. An eventual conviction would have to be taken up to the Constitutional Court, with the procedural limitations this presents.

Bearing all these facts in mind, the AED-EDL believes it is of vital importance that a well- informed and respectful of the Spanish judicial system international observation is carried out during the entire duration of the trial. Therefore, members of AED-EDL from different European countries will be traveling to Madrid during the following months in order to attend hearings, engage with other international observers and study in depth the legal aspects of the Catalan Referendum Case from a Human Rights perspective.

In Madrid, on February 9th, 2019

 

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